Bill C-51: An Attack on Privacy

Photo under CC license by Wikipedia Commons
Photo under CC license by Wikipedia Commons

Bill C-51 continues its high speed trip through Parliament, rocketing through the Commons and now being rushed through the Senate.

This bill has generated a level of controversy since its introduction in parliament, reminiscent of the outrage that accompanied the much-despised online spying bill brought in by former Public Safety minister Vic Toews. The government’s Anti-Terrorism Bill has been widely criticized for fundamentally changing Canada’s legal and security systems in a way that deeply compromises rights and freedoms.

The bill puts forward a remarkably broad definition of “security” that includes “interference” with “critical infrastructure” or with “the economic or financial stability of Canada.” This definition would allow an astounding array of activities to be susceptible to government scrutiny or interference. The bill includes provisions to criminalize speech that is divorced from any intent to commit “terrorist” activities. The expansion of “no-fly” lists and an extension of CSIS’s powers without a correlated expansion of review and oversight are additional issues of concern.

The list of activities that may “undermine the security of Canada”, as defined by Bill C-51, is accompanied by a fundamental change in the scope and scale of the state’s surveillance apparatus that constitutes nothing less than an attack on privacy. It is for this reason that, as privacy expert Michael Geist states, “virtually everyone in Canada’s privacy community opposes it.”

Photo under CC license by Flickr: Tamara Herman
Photo under CC license by Flickr: Tamara Herman

Embedded within the lengthy text of Bill C-51 is the “Security of Canada Information Sharing Act (SCISA).” The SCISA would allow information-sharing across 17 government departments for a wide range of purposes that fall outside of what most Canadians would consider even remotely related to “terrorism.” In one of the minor improvements to the bill, the government introduced an amendment to remove the word “lawful”, which would have captured “unlawful activities like illegal strikes or civil
disobedience within the scope of the new measures. Equally problematic is the fact that the SCISA would allow big-data propelled information sharing by government departments, taking advantage of weaknesses in the outdated Privacy Act.

In terms of accountability, the various intelligence review bodies themselves have stated that they do not have the means to keep up with the expanded role being proposed in C-51. Furthermore, the watchdogs have complained that they are not able to coordinate their review capabilities, which is an even bigger problem since the security agencies are doing more and more of their work jointly. And these are review bodies – only looking at things after the fact. The Harper Government got rid of the CSIS Inspector General, who flagged operational problems with the spy agency, in 2012. In FIPA’s submission on Bill C-51, we argue that even the successor to the infamous War Measures Act provides more opportunities for oversight and consultation than Bill C-51, and that would be in an actual time of war.

Professors Craig Forcese and Kent Roach’s in-depth examination of Bill C-51 includes a chapter on the SCISA in which they argue that the Act would authorize a “total information awareness” approach that constitutes a “radical departure from conventional understandings of privacy.”

Incredibly, Privacy Commissioner Daniel Therrien was not called as a witness in the Commons Committee hearings on Bill C-51, but was finally called to testify in the Senate. He told the upper house that the “bill would potentially lead to disproportionately large amounts of personal information of ordinary, law-abiding citizens being collected and shared. This sets up the prospect of profiling and Big Data analytics on all Canadians. In short, the means chosen are excessive to achieve the end.”

Furthermore, every single Privacy Commissioner in Canada – with the exception of New Brunswick – joined Therrien in signing a joint letter opposing the Bill, stating the SCISA would “significantly expand the power of the state to surveil and profile ordinary, law-abiding Canadians.” The letter points out that massive state surveillance “would be inconsistent with the rule of law in our democratic state and contrary to the expectations of Canadians.”

The government responded to growing opposition by proposing amendments, most of which have been widely dismissed as failing to respond to fundamental critiques of the Bill. Meanwhile, pressure continues to mount to scrap the Bill, with early support for the bill melting like spring snow once Canadians became more aware of what it actually contained. A recent Forum poll indicates that barely half of those surveyed supported stronger anti-terrorism laws, and of those who said they were aware of bill C-51, 56% disapproved of the bill while only 33 percent approved. The poll also found that 40% of people in the Conservative stronghold of Alberta now oppose the bill.

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